Biffa Waste Services Ltd v Dinler & Ors

Relief from sanctions requires consideration of all the circumstances, including the need to conduct litigation efficiently and at proportionate cost and to enforce compliance with rules and court orders. The court must consider the cumulative effect of breaches, their effect on the parties, and the waste of court time and resources. A costs order will not necessarily provide sufficient justice where breaches are wholesale, flagrant, unexplained and cause a trial to be lost. An appellate court may interfere with a case-management discretion where the judge failed to apply the correct principles or was plainly wrong.

The defendant appealed against a case-management decision of His Honour Judge Million in the Willesden County Court. The underlying personal injury claim arose from a collision between a refuse lorry and a car. The claimants repeatedly failed to comply with directions, including deadlines for witness statements, filing a pre-trial checklist and payment of court fees.

The claim was automatically struck out after the fees were paid late. The county court judge granted relief from that sanction, permitted reliance on late witness evidence and declined to strike out the claims, imposing an indemnity costs order instead. The central issue was whether that decision applied the post-1 April 2013 approach to relief from sanctions correctly.

1. Appeal allowed. Relief from the sanction of automatic strike-out should have been refused.
2. Under CPR 3.9, the court must consider all the circumstances, including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders. These considerations reflect the amended overriding objective in CPR 1.1 and require regard to the wider use of court time and resources.
3. The claimant solicitors’ conduct constituted wholesale and flagrant disregard of court directions. The relevant matters included substantial delay in serving witness statements, late filing of the trial bundle without consultation, failure to file the pre-trial checklist, late payment of fees, absence of applications for extensions and absence of any properly evidenced explanation.
4. The late witness evidence caused the listed trial to be adjourned and wasted court resources, including the attendance of an interpreter. The late payment of fees could not be assessed in isolation, because the court had to consider the earlier breaches and their cumulative effect.
5. The first-instance judge failed to direct himself on the applicable principles, failed to address proportionality and enforcement of compliance, and did not balance the factors for and against relief. His conclusion that an indemnity costs order would provide sufficient justice was therefore flawed. Had the correct principles been applied, refusal of relief was inevitable.
6. The court confirmed that an appeal court should interfere with a discretionary case-management decision where the judge has made an error of principle or is plainly wrong.

1. High Court (Queen’s Bench Division): allowed the defendant’s appeal from the case-management decision of His Honour Judge Million in the Willesden County Court. Relief from the automatic strike-out sanction should have been refused.